Subcommittee on Energy and Environment of the Committee on Science U.S. House of Representatives

 Speaker:

Mande, Jerold R.

 Status:

Archived

NOTICE: This is an OSHA Archive Document, and may no longer represent OSHA Policy. It is presented here as historical content, for research and review purposes only.

STATEMENT OF JEROLD R. MANDE
DEPUTY ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND HEALTH
BEFORE THE SUBCOMMITTEE ON ENERGY AND ENVIRONMENT
OF THE COMMITTEE ON SCIENCE
U. S. HOUSE OF REPRESENTATIVES
JULY 22, 1999

Honorable Chairman and Members of the Subcommittee:

Thank you for the opportunity to testify this morning on the important issue of external
regulation of worker safety and health for private-sector employees at national research
laboratories and other worksites owned by the Department of Energy (DOE). This issue is of
great interest and importance to the Occupational Safety and Health Administration (OSHA) in
keeping with our mission to assure that every working man and woman in the Nation is provided
with safe and healthful working conditions.

Since testifying before the Subcommittee on this subject last year, OSHA has continued to
undertake a number of cooperative projects with DOE to better understand the potential
implications of external regulation on our agency and to prepare for that eventuality. You
particularly asked to hear about the results of pilot projects that we have conducted recently with
DOE and the Nuclear Regulatory Commission (NRC). Before I discuss those with you, I believe
it would be useful to briefly describe OSHA's legislative authority as it applies to DOE facilities
and to summarize some of the major events and reports on external regulation.

OSHA Jurisdiction at DOE Sites

Section 4(b)(1) of the Occupational Safety and Health Act of 1970 (OSH Act) removes
from OSHA's authority those working conditions for which another federal agency (or state
agency acting under the Atomic Energy Act) has prescribed or enforced safety and health
regulation. This exemption is designed to prevent duplication of federal effort. The section
4(b)(1) exemption currently applies to DOE jurisdiction because DOE regulates occupational
safety and health at its Government-Owned, Contractor-Operated (GOCO) sites.

Most of the workers at these sites are employees of private-sector companies with which
DOE contracts or subcontracts. Yet because DOE has chosen to operate its own occupational
safety and health programs, these private employers are exempt from OSHA enforcement. This
was also the case with DOE's predecessor agencies, the Atomic Energy Commission and the
Energy Research and Development Administration.

A particular concern of OSHA in any discussion of external regulation is to ensure that the
level of protection we would provide under external regulation is equal to or greater than that
now provided under DOE coverage. DOE has adopted most of OSHA's regulations as the
foundation for its own regulatory programs, so many of the substantive safety and health
requirements for DOE contractors are the same as they would be under OSHA. However, in
addition to adopting OSHA regulations, DOE has developed some occupational safety and health
regulations of its own, such as more up-to-date radiation and chemical exposure standards, as
well as firearm and explosives and safety standards. If OSHA were to assume authority at DOE
facilities, we would need to adopt similar requirements so that employee protection would not be
diminished. It is important to understand that even if OSHA becomes the external regulator of
worker safety and health at DOE sites, that does not make OSHA the manager of safety and
health at the DOE sites. Under the OSH Act, the primary responsibility still rests with the
contractors and subcontractors, and, to some extent, with DOE as the site owner, to provide safe
and healthful workplaces and to comply with OSHA's regulations and standards.

Background on External Regulation

As OSHA noted to the Subcommittee last year, our interaction with DOE has increased
since the early 1990s, when OSHA was engaged in a number of so-called "Tiger Team" reviews
of DOE sites. This was followed by the announcement of former Energy Secretary O'Leary in
1995, that DOE would seek transition of the DOE complex to external regulation. Later that
same year, the DOE Advisory Committee on External Regulation of Department of Energy
Nuclear Safety issued its report entitled "Improving Regulation of Safety at DOE Nuclear
Facilities." The report concluded that DOE could not credibly regulate its own operations and
urged the creation of a system of external regulation. Specifically, the Advisory Committee noted
that OSHA should regulate all worker protection issues at DOE nuclear facilities, except when
that regulation would significantly interfere with maintaining facility safety (e.g., if a nuclear chain
reaction was possible.) In such cases, the Advisory Committee recommended that the designated
nuclear facility safety agency, such as NRC or the Defense Nuclear Facilities Safety Board, should
regulate worker safety and health issues under the Atomic Energy Act (AEA).

A subsequent DOE working group reviewed the Advisory Committee's recommendations
and concurred with their findings on a number of issues, including those regarding OSHA.
Another report, issued in 1997 by the National Academy of Public Administration, also concluded
that OSHA should have jurisdiction for occupational safety and health, and made
recommendations on a host of policy and implementation issues that would need to be addressed
to effect this transfer.

The Department of Labor and OSHA consistently have believed that external regulation, if
authorized, needs to be done in an orderly way with reasonable time frames. Transition must be
implemented without disruption to OSHA's ongoing programs, and the resource requirements to
address this responsibility need to be assessed.

OSHA Pilot Projects at DOE Sites

In 1996, OSHA participated in a pilot project at Argonne National Laboratory that
provided a baseline for subsequent pilots and work on external regulation. Since last testifying
before this committee, OSHA has completed two major pilot projects at DOE sites. In the
summer of 1998, OSHA conducted a large scale pilot at Oak Ridge, Tennessee, which included
both the Oak Ridge National Laboratory (ORNL) and the East Tennessee Technology Park
(ETTP), formerly known as the K-25 site.

In January 1999, OSHA conducted another pilot project at the Lawrence Berkeley
National Laboratory (LBNL) in California. The OSHA activities under the Berkeley pilot project
were incorporated into an ongoing NRC pilot project that had been underway at the Berkeley site
for approximately one year. Representatives of the OSHA-approved state program (Cal-OSHA)
also participated in the Berkeley pilot project.

From OSHA's perspective, the underlying objectives of both pilot projects were:

to gain first hand information about both sites, in order to better assess the nature
and severity of the hazards, as well as assess the adequacy of OSHA's standards,
training, and staff expertise to address them;

to better assess the potential impacts of external regulation on the agencies and
approximate what would occur on an actual OSHA visit under external regulatory
authority; and

to provide a forum for OSHA and NRC to evaluate regulatory interface issues at
DOE sites, since both agencies have a potential role in radiation safety at the sites.
(Because of scheduling difficulties, OSHA was unable to undertake this objective
at Oak Ridge; however, OSHA and NRC conducted productive policy discussions
on this subject at Berkeley.)

Furthermore, as part of the Oak Ridge pilot project, OSHA examined the potential impact
of site access and security clearance issues on OSHA's ability to conduct activities onsite under
external regulation. OSHA is concerned that under external regulation, contractors could use
site-specific training issues and the need for security clearances to hinder OSHA access to the site.
We believe that DOE's active involvement in assisting OSHA with these matters would be
essential to make sure this does not occur under external regulation.

At both Oak Ridge and Berkeley, OSHA utilized simulated inspections as the primary
method to study the potential impacts of external regulation. These simulated inspections, like
actual OSHA inspections, included opening and closing conferences with employers and
employees, physical walkthroughs of the worksites to identify hazards, and the preparation of
simulated citations and proposed penalties. Although the citations and penalties in this simulated
effort were not enforceable, OSHA also conducted post-inspection informal conferences with
DOE contractor employers and workers to discuss cited hazards, proposed penalties, abatement
methods and time frames, and any other items regarding the inspection.

For planning and logistical purposes, OSHA and DOE found it necessary to jointly identify
specific areas in advance for inspection. In the case of Oak Ridge, OSHA conducted pre-pilot
scoping visits to help the agency assess its resource needs for the simulated inspection. These
"advance notice" aspects of the pilot projects were a significant deviation from OSHA's typical
inspection process, and need to be considered in interpreting results of the pilots. Ordinarily,
OSHA inspections are unannounced.

OSHA inspected 16 individual facilities at Oak Ridge and also at Berkeley. The pilot sites were far too large for OSHA to attempt wall-to-wall inspections of all the individual
buildings and facilities. Thus, our selection process was designed to identify a good mix of
operations and provide a cross section of the work at the site. For example, the simulated
inspections covered typical private sector activities, such as machine shops, construction
operations, environmental cleanup activities, radiation and non-radiation areas, and laboratory
operations, just to name a few.

At Berkeley, OSHA also developed simulated citations and proposed penalties for some
hazards to DOE as facility owner, even though OSHA does not currently have legislative
authority to enforce penalties against other federal agencies such as DOE. It has been OSHA's
experience that workers' safety and health are best protected when OSHA has the ability to fine
both the facility owner who controls the worksite and contractors working at the site. In
addition, in the case of Berkeley, OSHA would be unable under current legislative authority to
enforce against the current site contractor, the University of California, which is an agency of the
State government. State governments and their subdivisions are generally not considered
employers for the purposes of the OSH Act and are currently not subject to enforcement by
Federal OSHA. Similarly, although many of the DOE GOCO facilities are located in States, such
as California, that operate their own OSHA program and exercise jurisdiction over State
employees, they would probably not now have authority to regulate at such federal
instrumentalities should external regulation occur.

Both the Oak Ridge and the Berkeley pilot projects also included a safety and health
program evaluation component. OSHA wanted to determine the level of management
commitment and employee involvement in safety and health at the sites. The evaluations also
were designed to determine whether DOE contractors have effective systems in place to identify
and control hazards, whether safety and health records are being kept appropriately, and if
employee training is adequate.

OSHA used the general approach that we employ for conducting evaluations of employers
under the Voluntary Protection Programs (VPP). VPP recognizes employers who achieve
excellence in safety and health, and thereby become models for other employers to emulate. In
the interests of time and resources, the VPP approach was modified and abbreviated in the pilot
projects. Nonetheless, the evaluations did include careful reviews of the sites' written policies
and procedures to determine how their safety and health programs are expected to operate.
OSHA augmented these paper reviews with numerous interviews with managers and employees
to help determine how the safety and health programs operate in practice. OSHA also examined
the sites' worker exposure and medical records, and conducted assessments of the sites' medical
services. While OSHA found safety and health programs in place at the pilot sites, most needed
improvement as discussed below.

So, what did OSHA learn from its participation in these pilot activities? Our overall
conclusion from both the Oak Ridge and Berkeley pilots (as well as the pilot project conducted at
Argonne National Laboratory in 1996) is that there are a number of legislative policy, logistical
and resource issues that must be addressed for external regulation to be accomplished in an
orderly manner. However, from OSHA's perspective, none of the problems and issues is
insurmountable and with careful and coordinated planning within the Administration and with
Congress, external regulation of DOE sites for occupational safety and health is, in our opinion,
an achievable objective.

The pilot projects clearly demonstrated to OSHA that external regulation would have a
significant impact on DOE's current operating practices and that DOE's approach to hazard-abatement decisions is often driven by federal budget concerns. If DOE identifies hazards and is
unable to correct them right away, it will prioritize the hazards, take appropriate interim
protective measures, and then attempt to obtain funding to address the hazards permanently.

Because there are a number of unabated hazards at DOE sites, all parties must recognize
the need for careful consideration of appropriations in any move to external regulation. We are
also concerned that the high projected costs of correcting these hazards might be attributed
incorrectly to OSHA, rather than to the fact that necessary corrections have yet to be made.

The pilot projects also highlighted that OSHA and DOE evaluate the seriousness of safety
and health hazards differently. OSHA found a number of hazards that DOE would consider a low
priority, but which would be classified as serious by OSHA. During the pilot project, OSHA
safety and health staff informally reviewed the Oak Ridge list and determined that many of these
issues would be classified by OSHA as serious in an actual OSHA citation. OSHA places great
weight on the severity of a possible outcome in assessing the seriousness of a particular hazard,
i.e. the ability of the hazard to cause serious physical harm or death. For the same hazard, DOE
factors into this equation an estimate of the probability that an event would occur, assigning lower
priority to hazards that might be less likely to occur.

The OSHA-simulated inspections identified 75 alleged violations at Oak Ridge and 62 at
Berkeley. Many of these were classified as serious by OSHA. Based on the inspection results,
OSHA believes that the majority of hazards found at DOE sites are addressed by existing OSHA
standards and requirements, and the General Duty Clause, section 5(a)(1) of the OSH Act. A
principal exception, as noted, is the OSHA standard for ionizing radiation, which needs to be
upgraded. Another area where OSHA may need to work on a new standard for DOE sites is in
the case of Firearms and Explosives, which are not specifically addressed by current OSHA
regulations.

The pilot safety and heath program evaluations revealed that DOE and its contractors
have implemented generally good worker safety and health programs. However, the pilot sites
could all be improved and, based on OSHA's abbreviated analysis, we do not believe any of them
would currently be eligible for participation in OSHA's VPP. A consistent finding at all pilot sites
was lack of employee involvement in safety and health issues to the breadth and depth that OSHA
would expect to find in an excellent safety and health program. Workers are engaged to a
degree, but in general, occupational safety and health is not as integral a part of the site work as
OSHA would require in an excellent VPP site. OSHA identified other areas for improvement,
including the need to address recordkeeping discrepancies at ETTP, the increased integration of
subcontractors into the safety and health program at ORNL, and the need for a stronger, more
visible industrial hygiene program at Berkeley. Injury and illness rates at ORNL and Berkeley
were above the national average, and OSHA believes that the rates at ETTP will also prove to be
above the average, once the site's recordkeeping discrepancies have been corrected.

Funding for Pilot Projects and Other Activities

The Fiscal Year 1999 appropriations bill for energy and water development provides for
DOE to transfer $1 million to OSHA for "conducting pilot programs and other activities
necessary to simulate the transition of regulatory authority over occupational safety and health at
DOE facilities." OSHA utilized a small portion of these funds to undertake the pilot project at
LBNL in January. OSHA was in discussions with DOE regarding the next pilot projects, when
Secretary of Energy Richardson announced that additional pilot projects would not occur.
OSHA's objective at that time was to initiate a large scale pilot project at a non-laboratory site,
since we had already conducted pilots at three laboratories and believed that a pilot at a major
nuclear site was advisable.

In the apparent absence of additional pilot projects for the remainder of the fiscal year,
however, OSHA and DOE mutually agreed to utilize the remaining funds to undertake other
activities that would assist us in preparing for external regulation. OSHA is making arrangements
to use the funds to develop training materials for OSHA compliance officers regarding radiation
issues, in particular to provide the agency's industrial hygienists with additional skills and
knowledge to conduct compliance activities at DOE sites, in the event that external regulation is
authorized.

In addition, OSHA plans to fund a study of ionizing radiation that the agency could use in
future rulemaking action for an updated safety and health standard. We have noted publicly on
several occasions, and the recent pilot projects have confirmed, that OSHA's current ionizing
radiation standard is out of date and needs to be revised. As an interim measure, OSHA has
proposed that any plan for external regulation needs to include legislation that would allow OSHA
to implement the current DOE or NRC rule at DOE sites as an interim final standard while OSHA
proceeds with rulemaking on a final standard. This would ensure that workers at DOE sites under
OSHA coverage would not be subject to less stringent radiation regulations under external
regulation by OSHA, until the agency is able to finalize an updated final rule.

OSHA also plans to analyze the DOE VPP program, which is similar, but not identical to
the OSHA program. The analysis would highlight the unique aspects of the DOE program and
provide OSHA a basis for developing a policy on the possible acceptance of DOE VPP sites into
the OSHA program under external regulation.

OSHA also may utilize a small amount of the funds to conduct activities to implement a
memorandum of understanding (MOU) regarding DOE privatized facilities and operations. The
MOU, which is currently in draft and nearing completion, would establish procedures to formally
transfer to OSHA safety and health enforcement authority for those privatized facilities and
operations located on DOE sites that DOE has leased to private sector employers who are not
conducting activities on behalf of DOE.

The conditions of employees at these privatized facilities are of great concern to OSHA,
since they presently are not covered by the full range of DOE protections that are afforded to
GOCO workers. In fact, walkthroughs of privatized facilities and operations conducted during
our Oak Ridge pilot project identified numerous safety and health violations, many of which
OSHA considers serious. OSHA classified two of the hazards as imminent danger, and DOE
made sure they were corrected.

The draft MOU would provide for DOE to initiate transfer action to OSHA, and OSHA
would have the option of visiting the facility for a pre-transfer visit before publishing a Federal
Register notice formally accepting jurisdiction for the facility or operation. Owing to OSHA's
current lack of an updated radiation standard, DOE would not initiate transfer for facilities or
operations where there are potential employee radiation exposures.

OSHA recently clarified to DOE the agency's position on safety and health jurisdiction at
DOE-owned sites that are not regulated under AEA. These include facilities such as fossil energy
sites, power marketing administration sites, and sites under the Formerly Utilized Sites Remedial
Action Program (FUSRAP). Absent any other law that might trigger 4(b)(1) preemption, OSHA
has agreed with DOE that we have jurisdiction for safety and health enforcement at these
facilities.

Conclusion

It is our view that OSHA's regulation of occupational safety and health at DOE sites
should be authorized only if such action would lead to better protection for workers. A number
of studies and advisory groups have in fact concluded that employees would benefit from external
regulation of occupational safety and health.

OSHA has employee safety and health as its single focus, and has implemented policies
and procedures that are designed specifically for the protection of workers. In addition, the
agency has developed a high level of expertise and has implemented comprehensive regulations
to address most of the safety and health hazards that are found at DOE work sites.

The recent pilot projects have reinforced our position that, from OSHA's perspective,
external regulation is an achievable objective. While OSHA is not seeking and has not actively
sought the additional responsibility for enforcement at DOE sites, the agency has for several years
undertaken a number of cooperative projects and activities with DOE to prepare for this
eventuality, including the recent pilot projects. We must reiterate our caution, however, that if
the transition is to be successful, it must be conducted in an orderly way, with reasonable time
frames to avoid unnecessary disruption to OSHA's other important ongoing programs and
resource requirements need to be assessed.

That concludes my prepared statement, Mr. Chairman. I would be pleased to respond to
your questions.

NOTICE: This is an OSHA Archive Document, and may no longer represent OSHA Policy. It is presented here as historical content, for research and review purposes only.

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